Abstract
This case note considers the automatic review of child offenders’ cases. Adult offenders’ cases go on ‘review in the ordinary course’ in limited circumstances, but section 85 of the Child Justice Act aims to provide automatic review in a wider range of cases. The wording of section 85 and how it should be read with the Criminal Procedure Act has caused interpretational difficulties. Two cases have provided answers to certain questions: Do all cases regarding children under 16 years go on review? Do all cases regarding custodial sentences (that are not suspended) go on review, regardless of the experience of the magistrate, whether it was a regional court that issued the sentence, the length of the sentence and even if the child was legally represented? The courts have answered these in the affirmative. In reaching these conclusions, the courts have interpreted the law within the context of the Child Justice Act as a whole, and within the provisions of section 28 of the Constitution.
Highlights
The North Gauteng High Court, Pretoria, has described the Child Justice Act (CJA) as having introduced a comprehensive system for the treatment of children in conflict with the law; one that represents a decisive break with the traditional criminal justice system.[1]
When drafting the Bill that would culminate in the Child Justice Act (CJA), the South Africa Law Reform Commission (SALRC) considered the ‘review in the ordinary course’ provided by section of 302 of the Criminal Procedure Act (CPA) to be insufficiently protective of the rights of child offenders to be detained as a measure of last resort and for the shortest appropriate period of time.[7]
The court worked its way through the arguments, and set out its conclusions in summary form at the end of the judgment[34] as follows: All cases are subject to automatic review in terms of the provisions of section 85 of the CJA where a child was (a) below the age of 16 years, or (b) 16 years or older and under the age of
Summary
Adult offenders’ cases go on ‘review in the ordinary course’ in limited circumstances, but section 85 of the Child Justice Act aims to provide automatic review in a wider range of cases. The courts have answered these in the affirmative In reaching these conclusions, the courts have interpreted the law within the context of the Child Justice Act as a whole, and within the provisions of section 28 of the Constitution. The article goes on to discuss the deliberations regarding automatic review, both by the South African Law Reform Commission and in parliament This discussion is provided as a backdrop to inform the reader, but would not be of assistance to the courts in the exercise of statutory interpretation, because the Supreme Court of Appeal has found that ‘little purpose is to be served by speculation as to the intention of parliament’.3. The contextual approach followed by both courts in coming to their conclusions, as well as their attention to children’s constitutional rights, is evaluated at the close of the article
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
